UPCOMING EVENTSFor long-range planners, we are going to hold the Western Canadian Class Action Conference in Vancouver on Friday, November 20 (for those of you who prefer Vancouver's sea and mountains to Toronto's.....what is it that Toronto has going for it again??). Registration details will follow in subsequent updates.NHL Playoffs start April 16. Go Canucks/Habs Go. Flames Suck. Leafs and Oil are beneath contempt.

NATIONAL CLASS ISSUESLepine v. Canada Post, 2009 SCC 16: The Supreme Court determined that an Ontario settlement should not be enforced in Quebec. The grounds for the decision were quite narrow:1. No proper notice: The court held that it is important that notice procedures be designed so as to make it likely that the information will reach the intended recipients. The wording of the notice must take account the context in which it will be published and, in particular, the situation of the recipients. Compliance with these requirements constitutes an expression of the necessary comity between courts and a condition for preserving it within the Canadian legal space. In the instant case, the clarity of the notice was particularly important given that parallel class proceedings had been commenced in Quebec and in Ontario. The court found that the Ontario notice was likely to confuse its intended recipients, as it did not properly explain the impact of the judgment certifying the class proceeding on Quebec members of the national class established by the Ontario Superior Court of Justice. It could have led those who read it in Quebec to conclude that it simply did not concern them.2. The presence of a filed (but not certified) proposed Quebec class proceeding. The Quebec courts were precluded from recognizing the Ontario judgment on the basis of lis pendens pursuant to art. 3155, para. 4 C.C.Q. The court held that a class action exists as of its filing date for the purposes of this article. The application for authorization to institute a class action is a form of judicial proceeding between parties for the purpose of determining whether a class action will in fact take place. In the instant case, the three identities were present at the stage of this application. The basic facts in support of both proceedings were the same for Quebec residents, the object was the same and the legal identity of the parties was established. There is no discretion to refuse enforcement under the relevant article if there is an extant Quebec motion.The court did find an error in the Quebec C.A.'s analysis of jurisdiction and forum non conveniens. The Quebec court does not have to consider how the court of another province or of a foreign country SHOULD have exercised its jurisdiction or, in particular, how it might have exercised a discretion to decline jurisdiction over the case or suspend its intervention. Enforcement by the Quebec court depends on whether the foreign court HAD jurisdiction, not on how that jurisdiction was exercised, apart from the exceptions provided for in the Civil Code. On the facts, the court concluded that the Ontario court had properly assumed jurisdiction given that the defendant's head office was in Ontario. However, the two problems noted above precluded enforcement.We draw the following conclusion from these findings: Quebec courts should respect a national class in proper circumstances i.e. where the original court had jurisdiction, where proper notice is given, and where there is no Quebec motion filed prior to the common law action. While this is "good news" in terms of the appropriateness of national classes, we do have a concern that this only heightens the incentive for a "race to the courthouse" , as it is now essential to get on file in a common law province with a proposed national class before there is a filing in Quebec, in order to have any chance of securing Quebec recognition of a future common law judgment.The court declined to provide any broader guidance on the management of overlapping class proceedings stating:"As can be seen in this appeal, the creation of national classes also raises the issue of relations between equal but different superior courts in a federal system in which civil procedure and the ad-ministration of justice are under provincial jurisdiction. This case shows that the decisions made may sometimes cause friction between courts in different provinces. This of course often involves problems with communications or contacts between the courts and between the lawyers involved in such proceedings. However, the provincial legislatures should pay more attention to the framework for national class actions and the problems they present. More effective methods for managing jurisdictional disputes should be established in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space. It is not this Court's role to define the necessary solutions. However, it is important to note the problems that sometimes seem to arise in conducting such actions."This throws the mess back into the hands of the courts and the legislatures. There was much talk at the Osgoode conference of how to move forward in this respect. More to come!

Wuttennee v. Merck Frosst, 2009 SKCA 43: The Saskatchewan Court of Appeal solved the competing national class problem in the Vioxx litigation by deciding that the Saskatchewan case should never have been certified in the first place, on traditional certification grounds.On class definition, the court found that the court erred in over-complicating the issue through subclasses that had imbedded merits characteristics: "...the induced subclasses, defined as those "who by unfair marketing practices used by Merck, were induced to purchase Vioxx from a Canadian pharmacy rather than a cheaper NSAID and thereby suffered a financial loss", set criteria for class membership that depend on the outcome of the litigation of common issues, in this case relating to Merck’s conduct in marketing Vioxx, necessary for determination of whether it committed unfair marketing practices, as well as the outcome of the litigation of individual issues, whether the individual was "induced" by such conduct to purchase Vioxx rather than a cheaper drug and thereby suffered a financial loss. This definition is therefore objectionably circular even on the more liberal view of Cullity J., discussed above."The court carried on to suggest that there was a fundamental flaw in the action that prevented certification generally: "In my view, much of this difficulty arises from two choices made by the respondents in fashioning this action: (1) the choice to combine in one action a number of diverse and not necessarily related claims; and (2) the choice to define those claims vaguely so as not to confine the plaintiffs to particular factual allegations. In relation to the diversity of claims, it seems clear, at least, that the claim for damages for personal injury in relation to gastrointestinal injuries or conditions is completely unrelated to the claim that Vioxx increased the risk for certain adverse cardiovascular events and, indeed, would have a distinct factual basis...In the result, however, these difficulties combine to make it difficult, if not impossible, for this Court to determine with any certainty whether the defects in the definitions of the subclasses that I have found above could be resolved by amending the class definition..."The same problems were found to play into the common issues requirement: "[A]ll of the difficulties identified above recur in this context. In short, the diversity of claims sought to be asserted, combined with the lack of clarity of what facts are alleged in relation to each, present insurmountable challenges, in my view, to the identification of issues which are common to all claims and therefore to all members of the class."The court held that the suitability of the case for a punitive damage claim could not stand on its own as a common issue (para.159).On preferability, the court held: "While Klebuc C.J. relied upon the fact that class proceedings in other pharmaceutical cases had been found to be the preferable procedure, in my respectful view, he failed to consider this essential difference between the claims advanced in those cases and the myriad of claims sought to be advanced in this action. It is my view that this action vastly over-reaches what is reasonably manageable in a class action in a fair and efficient way."Mignacca v. Merck Frosst Canada Ltd. (Nov 17, 2008) (Div Ct. ): In this Ontario Vioxx action, leave was granted on the refusal to grant a stay of the Ontario proceeding in favour of the Sask, but leave was not granted on the pure certification issues. This appeal is now presumably rendered moot if the decision above stands.Sollen v. Pfizer, 2008 ONCA 803: The court refused an appeal by the defendant from a decision allowing discontinuance of an Ontario action so that the Plaintiff could pursue the claim in Saskatchewan. The court stated: "While we recognize that there are important issues surrounding national class proceedings commenced in multiple jurisdictions, the facts of this case do not provide the appropriate foundation for a consideration of those issues."Ali Holdco Inc. v. Archer Daniels Midland Co., [2008] O.J. No. 4657: The Plaintiffs sought to set aside a Registrar's dismissal order, and an order that the Ontario action be set in abeyance for a year on the basis that the parallel B.C. action was proceeding first. The court granted the application.Campbell v. Canada (Attorney General), 2009 FC 30: The Plaintiffs applied to discontinue the class proceeding so that the matter could be pursued in a new Saskatchewan claim. The court confirmed that in Federal Court, approval must be sought to discontinue (para.8). The Defendant argued that their interests should be taken into account in considering whether to grant the order. The court disagreed stating: "Having reviewed the extensive jurisprudence referred to by the parties, I have been unable to find any support for the Defendants' assertion that the Court must also be satisfied that they will not be prejudiced by the discontinuance." The Defendant also relied on abuse of process arguments. The court rejected these stating: "I accept that the multiplicity of actions commenced by the Plaintiffs, in particular, the recent action commenced in Saskatchewan may amount to an abuse of process." However, the court found that those issues should be raised in Saskatchewan given that the Saskatchewan action was commenced after the Federal Court proceeding. The order to discontinue was granted so long as notice was given (necessary due to the publicity that occurred on filing).

SETTLEMENTSBilodeau v. Maple Leaf (March 9, 2009) (Ont.S.C.): Court approved a $25 million guaranteed settlement and $3 million fee. The writer was co-counsel for the class (along with a cast of dozens). The court declined to approve a request by Merchant Law Group for pre-approval of an additional fee, and for payment of a disbursement to outside counsel hired by Merchant Law Group and Rochon Genova for the purposes of contesting carriage. Parallel approval was granted in Saskatchewan and pending in Quebec.Geoghides v. Scotia Capital (January 23, 2009) (Ont.S.C.): Settlement of $3.4 million approved in foreign exchange case against securities broker. The writer was co-counsel for the class. Fees of 25% were approved.Stewart v. General Motors of Canada Ltd. [2008] O.J. No. 4426 (S.C.): Court approved a defective automobile part process settlement. The writer was co-counsel for the class in B.C. The court commented on certain objections:"A notable feature of the objections is the almost entire absence of any recognition that a settlement is essentially a compromise and that there would be risks, great delays and considerable expense in continuing with the litigation. There was also, I think, a pervasive failure to understand that the court has no power to amend the terms of the settlement, so that its refusal to give approval would mean that the litigation would continue unless and until it became possible to reach further agreement."Fees were approved in part, with some interesting commentary:"The first concern is that I do not see on what basis I can, or should, properly approve fees of counsel in the other proceedings. There is no evidence that they worked as a team in the prosecution of this action, or that their work on the other cases benefited the class in this action or, indeed, the members of the putative classes in such cases. The only persons who would benefit would be the lawyers in those proceedings who would, in effect, be bought off. The suggestion that the court should approve payment to the other lawyers of part of the amount the defendants are to provide to settle the proceeding could only give further encouragement to the commencement of multiple class actions in the future.At the same time, there is, I believe, validity in the submission of plaintiffs' counsel in this proceeding that, by reaching agreements with respect to the other actions, they have conferred a benefit on the class in this proceeding. The benefit consists of avoiding delay and expense that otherwise might well be incurred because of the unresolved problems with multiple multi-jurisdictional class actions in Canada - problems exemplified by the Voutour and Tiboni proceedings. This benefit, in my view, may legitimately be taken into account in determining the appropriate quantum of the fee to be awarded to counsel in this case without purporting to approve the fees of counsel in the other cases, and without being concerned with - or interfering with - any binding agreements that the parties have made with such counsel...In my opinion, the concerns I have expressed about approving the fees of the other lawyers do not detract significantly from the reasonableness of the total amount that the defendants agreed to pay. The amount of $2,520,000 represents a multiplier of approximately 2.6 times the docketed time of plaintiffs' counsel in the proceedings in Ontario and Quebec after the negotiated reduction of approximately 25 per cent is made in calculating an acceptable base fee. If the success achieved by the efforts of plaintiffs' counsel was to be determined without reference to the total amount that the defendants will actually have to pay - an amount that will depend on the number of claimants and the categorisation of their claims - and, if recognition is to be given to counsel's success in avoiding multi-jurisdictional disputes, a multiplier of 2.6 would, I believe, be on the low side. I am, however, not satisfied that, in this case, I can appropriately disregard the possibility that, when all claims have been dealt with, the lawyers and not the class members may turn out to be by far the principal beneficiaries of the settlement. The defendants have not agreed to contribute a minimum amount for the benefit of the class members, and there is no assurance that the net recovery for them will not be significantly less than the amount of the fees. It is, of course, equally possible that the fees will represent an acceptable percentage of the gross recovery, in which the expenses of administration to be borne by the defendants must be included. On the evidence in the record, it would be sheer speculation on my part to draw one inference rather than the other...The problem arises not just because, until the claims period has expired, it will be uncertain how many of the class members will make valid claims - and in which of the three categories those claims will fall....It has been recognised in other cases, that, for the purpose of fee approval, it is legitimate to look at the actual recovery achieved for the benefit of the class. This is consistent with the requirement that the court should look at the degree of success as well as the degree of risk...In similar circumstances, it has been recognised that it may be appropriate to defer final agreement of fees until the amounts recovered for the benefit of the class have been ascertained...In this case the amounts payable to individual class members are relatively small and over 25,000 successful applications at an average payment of $100 will be required for the payments to even equal the fees requested. Even after giving significant weight to the other factors that are relevant to a fee determination - as I am satisfied I must in this case - there is such uncertainty on the question of the total recovery, that I am not prepared at this stage to approve the payment of $2,520,000 ... There will be an order that $1.5 million of the amount to be held in escrow...may be paid to class counsel ....The balance - less any amount ordered by the Superior Court of Quebec to be paid to counsel in the Quebec proceeding - is to continue to be held in escrow until further order of the court."A parallel approval issued in Quebec: Tsuk v. General Motors Du Canada Limitee (October 30, 2008) 500-06-000353-066 (Que.S.C.)McCutcheon v. Cash Store, [2008] O.J. No. 5241: Settlement of payday loan class action covering all provinces but B.C. and Alberta was approved. A flat fee of $500,000 all inclusive was approved based on a minimum payment of $1.5 million plus administration costs. The court also approved a payment of $10,000 to the representative plaintiff based on the evidence filed of actual work done and the exposure to costs that was assumed, and the fact that the request was made by class counsel without request from the plaintiff himself. The court concluded: "I will, however, reiterate what I have said in other cases that, as a general rule, all benefits and payments to be made by defendants should be treated as a single package when considering the fairness and reasonableness of a settlement from the viewpoint of a class. This, I believe, should be accepted whether or not there are expressed to be separate agreements for fees to be paid directly by defendants rather than out of a settlement amount otherwise earmarked for the benefit of the class. As in other parts of the law, substance must prevail over form." The writer is counsel for the defendant in B.C.Lawrence v. Atlas Cold Storage (February 12, 2009) 04-CV-263289CP (Ont.S.C.): Securities class action settlement for $40 million gross approved. Fee request of $12 million knocked down to $6.3 million based on concerns about overlawyering (resulting in a 25% reduction to the base time), and in order to put multiplier in the appropriate range (2.6).Bernett v. St. Jude, 2009 BCSC 82: Settlement rejected due to failure to provide for compensation for possible psychological injuries.Meretsky v. BNS (January 23, 2009) (Ont.S.C.): Settlement of FX class action paralleling Cassano v. TD. Fees of 20% were approved. For more information see http://www.visaclassaction.com/Walker v. Union Gas Ltd., [2009] O.J. No. 536: Criminal interest rate case settled for $9.2 million, or 8.8% of the late penalty payments (as compared to 19.3% in the earlier Enbridge settlement). The court stated: "The lower proposed settlement percentage in the Union class proceeding is justified because there are a number of issues relating to liability and the quantum of damages which arguably distinguish this class proceeding from the Enbridge class action." (at para.26). The court approved a distribution of $5.4M to the Winter Warm Program, $3.1M to class counsel, $600g to the Class Proceedings Fund, and $140g for notice. The fee was a multiplier of approximately 2.19. The representative plaintiff was paid $5000 from the fees otherwise payable to Class Counsel fees for 70 hours work. The court approved the cy pres distribution stating: "The Court is satisfied that it is both administratively difficult and prohibitively costly to attempt to determine the late payment penalties incurred by individual customers of Union and allocate individual payments in restitution. It is efficacious and efficient to have a cy pres distribution as seen in the Enbridge settlement."Wong v. Sony Corp., [2009] O.J. No. 22 (S.C.): Settlement approved of DVD defect class action. Fees of $110,000 were approved, which were less than the time invested in the case.Slabodkin v. Sandals Resorts International (2000) Ltd., [2008] O.J. No. 5323 (S.C.): Settlement of disrupted vacation class action. Compensation was 5 nights at an all inclusive resort, but not airfare. The court noted that there were substantial risks on all levels of the case. Fees of $50,000 were approved, which was said to be in excess of recorded time.McColl v. Whitehall-Robins Inc. Canada (c.o.b. Wyeth Consumer Healthcare) [2008] O.J. No. 5311 (S.C.): Settlement of PPA class action approved. The only known personal injury class member was paid an undisclosed amount and $200,000 was paid cy-pres. Fees of $100,000 were approved, which was a 0.5 "multiplier".Butler v. Honda Canada Inc. [2008] O.J. No. 5390 (S.C.) and (March 25, 2009) 52333CP (S.C.): Settlement of odometer case approved, subject to approvals in BC and Quebec, which are pending. Fees of $650,000 proposed.Nutech Brands Inc.v. Air Canada, [2009] O.J. No. 709 (S.C.): Court approved partial settlement of this price fixing class action. The settlement fund net of fees was to be held in trust until further settlements or awards are achieved and a distribution protocol is approved by the court. The Canadian settlement was on par with a U.S. settlement. The settling defendant also agreed to assist in relation to the ongoing prosecution of the action. The court noted: "It is appropriate to consider non-monetary benefits in the assessment of the reasonableness of a settlement agreement..." In a subsequent decision at [2009] O.J. No. 710 (S.C.), the court approved a 25% contingency fee, which was approximately a 1.46 multiplier. A parallel approval issued in B.C. in McKay v. Air Canada, 2009 BCSC 392Stasny v. Southwestern Resources Corp (November 3, 2008) CV-07-CV009525-0000 (Ont.S.C.J.): Securities class action settlement. Parallel cases were approved in B.C. (Martin v. Southwestern Resources Corp. January 14, 2009, S075049, B.C.S.C.) and Quebec (Vézina c. Southwestern Resources Corp., 2008 QCCS 5907). The courts approved a 24.79% contingency fee.Smith v. Labatt Brewing Co., [2009] O.J. No. 117 (S.C.): Retirement benefits claim settled. Settlement restored approximately 25-50% of the expense that would have been incurred under the proposed amendment to the plan. A flat fee of $400,000 inclusive of disbursements and taxes was approved versus actual time of $261,000.Manulife Securities International Ltd. v. Société Générale, [2009] O.J. No. 77 (S.C.): Investment class action settled.Dhillon v. Hamilton (City), [2008] O.J. No. 5303 (S.C.): Pension case settled. The case had previously been certified in 2006. Counsel fees and disbursements of $540,000 were approved. No premium was sought.799376 Ontario Inc. (c.o.b. Lonsdale Printing Services) (Trustee of) v. Cascades Fine Papers Group Inc., [2008] O.J. No. 5280 (S.C.): Price fixing case settled. Court approved a 25%/2.88 multiplier fee. Court noted that there was no reversion, so there was no need to consider whether fees should be based on amount actually distributed.Djemai c. Institut Aviron inc., 2008 QCCS 6022 and 2009 QCCS 1075: "Defective education" case settled.Carpentier c. Apple Canada, 2008 QCCS 4537: Ipod nano screen scratch class action settled for up to $345,000 in credits (depending on take up) and $40,000 in legal fees. The court held that this structure was not a collective recovery allowing the Fonds to take a percentage under 1031 C.P.C. Nor was in a monetary payment or damages entitling the Fonds to claim under 1028 CPC.Rouleau c. Fortin, 2009 QCCA 452: Settlement notice regarding agreement with certain defendants approved. Cross appeal by other parties arguing limitations dismissed.Doyer c. Dow Corning Corporation, 2008 QCCS 5746: Interim distribution of 64% of claims from settlement fund approved.Ostiguy c. Québec (Procureur général, 2008 QCCS 5853: Court approved fee request of $10,000 in settled class action, rather than the $100,000 requested.

CERTIFICATION DECISIONSSperm bank storage case refused certification: Lam v. University of British Columbia, 2009 BCSC 196: The writer was counsel for the fridge repairman. The court noted that the claim would turn in large measure on whether the class could overcome a contractual waiver, which was an individual issue. The decision is under appeal.Franchise case granted certification: Landsbridge Auto Corp. v. Midas Canada Inc., [2009] O.J. No. 1279 (S.C.) The court struck certain causes of action but allowed others to remain, including unjust enrichment. The court made an interesting comment on class definition:"Generally, I do not see why, as a condition for certification, plaintiffs should be compelled to include every person who shares in the common issues. It is, for example, accepted that geographic limitations are permissible and I see no reason why other limitations should be rejected. In any event, I believe it was not unreasonable for the plaintiffs in this case to limit the class they wish to represent to those persons who will have a continuing interest in the franchise relationship and in the respective rights and responsibilities of Midas and the Franchisees." (para.70)Allegiance case refused certification: Roach v. Canada (Attorney General), [2009] O.J. No. 737 (S.C.): The court held that there was no proper claim for damages and hence an individual declaration for constitutional invalidity would be the preferable procedure. Interestingly, on class definition, the court would have allowed a representative who was counsel at the class counsel firm. The court stated: "As a general rule, it is not appropriate to appoint as a class representative a member, or associate, of a law firm that would act as class counsel... However, there is not here the usual potential conflict of interest and appearance of impropriety arising from the possibility that decisions he might make in the proceeding would be influenced by his firm's interest in earning substantial legal fees. Mr Roach has been the moving force behind the proceeding in his personal capacity, and his involvement in the case and the earlier proceeding - together with his legal knowledge and experience and his strong commitment to enforcing the rights of the class members under the Charter - make him eminently qualified to perform the responsibilities of a representative plaintiff. In the circumstances of this case, I do not consider that it would be necessary or desirable for this purpose to saddle him with the expense of retaining other lawyers."Denial of psychiatric services case certified: Labelle c. Agence de développement de réseaux locaux de services de santé et de services sociaux - Région de Montréal, 2009 QCCS 204Repair Estimate charge case certified: Dean v. Mister Transmission (International) Ltd., [2008] O.J. No. 4372 (S.C.): The proposed class argued that the defendant was not allowed to charge for an estimate if the repair work itself is performed. The court stated:Para 31: "With respect to the first asserted cause of action, the request for declarations, it is clear, in my view, that the declarations, standing alone, are of no particular benefit to the plaintiff or the class. They are of benefit only if they are a springboard to the claim for damages or, to characterize it in another way, to a refund of the money paid in contravention of the statutory provisions."Para 93 " It should be noted that the criterion prescribed by s. 5(1)(d) itself speaks of a class proceeding being the preferable procedure "for the resolution of the common issues". Normally, in my view, once the Court has found that an issue is properly a common issue, it would be unusual that a class proceeding would not be the preferable method of resolving it."On alternate procedure: Paras. 96-98: "The defendants argue that a class action is not the preferable procedure because there is a dispute resolution mechanism created by the Consumer Protection Act, 2002. I disagree.... Both the Motor Vehicle Repair Act and the Consumer Protection Act, 2002 provide for a right of action in court. Neither statute precludes the use of the procedural mechanism of a class proceeding where circumstances warrant. The defendants argue that the Consumer Protection Act, 2002 provides for consumer complaints to be investigated by the Minister of Consumer and Business Services, and that such complaints may be determined by the Licence Appeal Tribunal, pursuant to s. 109 of the Act. I am not convinced that that process, even if available for claims of this sort, which I doubt, provides an adequate mechanism for the resolution of these claims that is superior to a class action."Illegal school fees action not certified: Wiggins v. British Columbia, 2009 BCSC 121: The case was struck down based on the cause of action requirement. The court stated at para.34:"With respect, nothing in the governing statute itself, the School Act, supports that plaintiff's assertion that the Province has a statutory duty to monitor and control the compliance of boards of education with law and policy regarding the charging of school fees. As the defendant submits, the purpose of the School Act is to establish a structure for the provision of educational services by independent boards. The statute clearly envisions boards of education as independent, elected bodies that operate with considerable autonomy. As such, the imposition of liability on the Province for the failure to control or monitor the schools or boards is contrary to the scheme of the School Act."Alleged service interruption of cable services certified: Wilkins v. Rogers Communications Inc. [2008] O.J. No. 4381 (S.C.)Immigration case refused certification: Patel c. Québec (Procureur général) (Ministère de l'Immigration et des Communautés culturelles), 2009 QCCS 601. Action was brought on behalf of all persons who applied for immigration to Canada under the Quebec skilled worker program and whose applications were rejected without being informed of their right to apply for an administrative review of such rejection. There was a nice (English) statement of Quebec's cause of action test: "Even though Patel need not go so far as to show a probability that her conclusions are well-founded as regards the alleged facts, it is a well-accepted principle that Patel must allege facts in a sufficiently precise manner so as to enable the Court to ascertain if the rights Patel is claiming have any chance of being recognized on the merits" (at para.41). The court found that there was no appearance of right given (1) the delay in making the claim, (2) the information that was provided to the representative plaintiff, and (3) the weakness of the contractual and discrimination claims.The court also rejected certification based on the fact that there was insufficient commonality: "...[The] Court finds that even though the questions in law are possibly identical for all members of the potential class, they are contingent on the determination of an individualized set of facts that require separate analysis for each class member."On the suitability of the representative, the court rejected the proposed individual noting that (a) all investigation had been done by the law firm, (b) no effort was made to contact even a small number of class members, (3) the immigration consultant retained by the Plaintiff was controlling everything, (4) the plaintiff had refused the opportunity for an administrative review, and (5) the plaintiff did not show that she was able to finance the proceedings, particular the cost of notice.Pension case certified: Caponi v. Canada Life Assurance Co., [2009] O.J. No. 114 (S.C.). The court declined to certify the aggregate assessment question based on the evidence before it that consideration of individual circumstances may be required. However, the court stated "...it would be for the judge at the trial of the common issues to choose between the differing views of the methodology to be employed, and the information required, in calculating damages and, for this purpose, also to decide whether the conditions for an aggregate assessment are satisfied. Accordingly, the exclusion of issue (e) from the common issues would not in any way restrict the powers of the court at trial." On preferable procedure, the fact that the representative plaintiff had a claim for $780,000 did not prevent certification as "The important question, however, is whether access to justice will be provided for the Class and the fact, or the possibility, that the Plaintiff could afford to litigate the issues is not decisive." The suggestion that the case could proceed as a test case was "beside the point in the absence of any agreement by the Defendants to treat such a proceeding as a test case that would bind them vis a vis the remaining Class members." (at para.50). The court declined to mandate a separate subclass representative as "I see no justification for an inference that Mr Caponi would have any consequential conflict of interest, or otherwise be an unsuitable representative for such a subclass. He is a former long-standing employee of the Company with a substantial interest in the preceding and is a member of the Canada Life Canadian Pension Plan Members' Rights Group - a voluntary association established to promote awareness, and to provide information, relating to the rights of plan members."Native membership rights case refused certification: Buffalo v. Samson Cree Nation, 2008 FC 1308: Court held that common issues were not adequately stated. On preferable procedure, the court held that litigation could be better resolved individually where proposed class members benefits would all have to be individually considered, and all had different releases. The court also noted the importance of individually assessing discoverability. Finally, the court noted that individual claims could be in the range of $200,000, giving class members a potential interest in individually controlling separate actions. On the adequacy of the representative, the court noted the failure to produce a litigation plan. The court declined to order any costs against the representative plaintiff.Product defect case refused certification: Chartrand v. General Motors Corp., 2008 BCSC 1781: Notably the proposed representative "... became involved in this case because she was contacted by the proposed class counsel. Counsel had previously acted for her with respect to motor vehicle accidents. Her evidence is that counsel telephoned her in September 2005, and told her that her truck, which she purchased after one of the accidents, and which is one of the proposed class vehicles, might have a problem with a parking brake. Counsel asked her if she was interested in having her truck investigated. She agreed, and went to his office." After the inspection, counsel paid for the inspection and repair.The court found there was no class stating: "It is not enough to point to a group of people in British Columbia who are owners of specific vehicles with automatic transmissions. There must be some evidence that two or more people have a complaint that GM manufactured a dangerously defective product that caused them a loss and/or that GM was unjustly enriched at their expense...[The class test] requirement has been viewed as an air of reality test, testing the reality of the linkage between the plaintiff's claim and the proposed class...There is ...no evidence of anyone wanting to participate in the class proceeding; Ms. Chartrand herself was recruited to participate."On the adequacy of the representative "In assessing whether Ms. Chartrand is an appropriate representative plaintiff, the Court may look to her motivation and the competence of her counsel...98 She is entitled to look to counsel to know the law, the procedures, and to devise the strategy whereby a remedy will be obtained: Frey v. BCE Inc., 2007 SKQB 328, 312 Sask. R. 4 at para. 7. She does not have to demonstrate an extensive understanding of the litigation process itself.99 What is needed is a genuine plaintiff with a real role to play and not a placeholder plaintiff for the entrepreneurial interests of lawyers who have so much at stake...I, however, am not satisfied that she has been actively participating in the decisions relating to the litigation to date. Nor am I satisfied that she would actively participate in the future by directing the litigation and instructing class counsel. The role for which she was recruited is a passive one. In that sense she is not in a position to vigorously and capably prosecute the interests of the class...This conclusion is reinforced by the contents of the retainer agreement. That agreement makes no reference to her participation in decision making. Her retainer agreement is quite different in this respect from the one found in Fantl, ...which says that the client "retains the right to make all critical decision regarding the conduct of the matter"On the recruitment: "There is no specific legislative provision or legal principle which prohibits recruitment. Nevertheless, recruitment is a factor to consider in deciding whether a proposed representative plaintiff can fairly and adequately represent the class."On the role of U.S. Counsel: "Concerns also arise when American counsel are involved in proposed Canadian class pro-ceedings. The nature of the involvement is relevant. Lawyers from other jurisdiction may be able to act as consultants. It is a different matter if they are in some way underwriting the litigation and obtaining a potential benefit from it. A representative plaintiff must have competent counsel in order to fairly and adequately represent the interests of the class. The court, as part of its role in a class proceeding, supervises class counsel to ensure that counsel is acting in the interests of the class. The court is not in a position to supervise the actions of or participation of counsel from another jurisdiction."In summary: "...she is not a suitable representative plaintiff because: she was recruited to play a particular role by counsel which did not involve active participation in decision making, at a time when she had no complaint against GM; she has no real interest in the outcome of the litigation because she was given a financial incentive to become involved; and her counsel has a partnership with U.S. lawyers, the nature of which is undisclosed, which may not be in her best interests or in the best interests of the class"Light cigarettes action refused certification: Sparkes v. Imperial Tobacco Canada Ltd., 2008 NLTD 207: The court found that the fact that the Director of Trade Practices could bring an action in a representative capacity did not bar a class proceeding under s.41 of the Newfoundland Act: "The Plaintiff's action cannot be taken in a representative capacity under the TPA unless undertaken by the Director in his regulatory role under section 15 or following a written request by a consumer under section 16. There is no mechanism under section 15 to bind all members of the class, although the court may grant relief for the benefit of the class. The hallmark of a representative action is that it be binding on all persons represented or else there is little point in pursuing such an action."'The case fell down on the cause of action requirement however. In relation to the alleged Trade Practices case, the plaintiff had failed to plead the requisite damages: "The TPA creates a single cause of action by a consumer under section 14(1) which may lead to various remedies under section 14(2). But in that action, the plaintiff must allege that he suffered damages as a result of an unfair trade practice committed by "the" supplier, i.e., the defendant with whom he entered into a consumer transaction. The TPA also allows for a Director's action in section 15 by which the Director of Trade Practices may commence an action against "a" supplier who has, in his opinion, "engaged" in an unfair trade practice. The Director may seek the remedies available under section 14. There are no issues of a consumer transaction, individual reliance, damages or privity of contract. In my view, the Plaintiff is attempting to pursue a Director's action under the guise of an individual action which is not permissible under the legislation."The court also held that an alternate cause of action was flawed as it was, in essence, seeking to establish a nominate tort of breach of statute. The court went on to find that there was no identifiable class given the lack of a proposed connection to the alleged misrepresentations. On common issues, they were either not common (because of the need to establish reliance), were not supported by adequate evidence (in relation to aggregate and punitive damages), or related to defences that had not yet been raised.Subdivision marketing case certified: Haddad v. Kaitlin Group Ltd., [2008] O.J. No. 5127 (S.C.): The court did not certify waiver of tort against a parent company because there was no allegation of wrongdoing against the parent, only a claim seeking to pierce the corporate veil. The court also confined the class to direct purchasers. The court confined the misrepresentation common issues to the specific issue regarding the golf course that was at the core of the pleading. The court deferred the issue about whether issues regarding possible defences should be certified until after a Statement of Defence was filed. The court found that certification was preferable even though the court acknowledged that issues as to reliance would remain. The court required that a second representative plaintiff be added given that the representative plaintiff's situation was "somewhat unique".ZoPf v. Soberman Tessis Inc., [2009] O.J. No. 1104 (S.C.): Class action over allegedly misrepresented debentures certified. The application was unopposed save for a wrinkle created by a potential competing class action. The court deferred any carriage fight as follows: "Lerners LLP represents a group of class members, and I was advised that if a co-counsel arrangement was not achieved, a member of this group might commence a rival class action and bring a carriage motion. The certification of Mr. ZoPf's action as a class proceeding is made without prejudice to the rights of these class members to commence another action and to seek carriage."Certification granted on appeal in paint delamination case: Vermette c. General Motors du Canada ltée, 2008 QCCA 1793. The majority held that the trial judge's decision on the extent of individuality was based on facts not in evidence, particularly given that the court had declined GM's request to submit an expert report. The court noted that there was a core common issue: "En l'espèce, la démonstration de la présence d'un vice caché de conception ou de fabrication à l'égard des véhicules visés par le recours collectif profitera indubitablement à l'ensemble des membres du groupe."Ponzi case certified: Eaton v. HMS Financial Inc., 2008 ABQB 631: There were certain conditions imposed, in particular that any Representative Plaintiff surrender any commissions to the Plaintiff class prior to the certification order to avoid a conflict of interest. The court also noted that any commissions would have to be deducted from each class members award. Certain causes of action were struck. A few points of note from the decision follow.On class definition: "I find that "having suffered a loss" is not merits-based because having invested and suffered a loss only gets one into the class and it does not determine recovery collectively or individually. In other words, to be a merits-based class it would have to be something to the effect of, "those who have suffered losses that were the product of fraud by the Defendants or their agents", which is not the case." (para.53).On the need for a rep plaintiff for each defendant: "I believe that, in face of less than a complete document record at this point in the proceedings, and with Carlson not providing (or yet required to produce) any evidence, there would be a substantial injustice to the class if there was a need for a specific representative Plaintiff with a personal cause of action against Carlson at this point in the litigation...Moreover, I find that the evidence is sufficient at this stage in this unique case, before document disclosure, to make it apparent that one or more of the class members, albeit not specifically identified on the record at this time, has an action against Carlson, and that is sufficient. This is not a case, as in my decision in Alberta Society for Pension Reform, where the proposed representative plaintiff could never have a cause of action against any of the defendants. In any event, subject to other decisions I have made herein on the proposed Representative Plaintiffs, I find that they are, at this time, suitable for this purpose." (at para.67)On the potential multiplicity of representations: "While to some extent yet to be determined there may be individual circumstances, I find that a class proceeding is appropriate where the allegation is of relatively few primary misrepresentations by Defendants, not a "myriad" of misrepresentations." (at para.133)Risorto v. State Farm Mutual Automobile Insurance Co.,[2009] O.J. No. 820 (Div.Ct.): Court overturned decision by trial court to allow plaintiff to file fresh affidavits and take second shot at certification. The court held that the same test for new evidence should apply as in regular proceedings:"Parties involved in this sort of litigation understand well the significance of an order granting or refusing certification. Both parties will usually devote substantial amounts of time and resources on the motion. Typically, the magnitude of costs requested, and often awarded, vastly exceeds anything awarded on an ordinary interlocutory motion. Indeed, it is difficult to conceive of an interlocutory proceeding in which the parties would better understand the need to put their best foot forward. In my view, the interests in preventing litigation by installments; requiring parties to put their best foot forward; and finality; are just as compelling in certification proceedings as they are in any other proceedings...In my view, neither s. 5(4) nor s. 12 of the Act compel a different approach. Section 5(4), on its face, permits the Court to "adjourn" the motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence. That is not what occurred here. In this case, the motions judge had dismissed the motion. He was compelled to reopen the motion, and then adjourn it. While the Court retains its discretion to permit the calling of further evidence once the motion for certification has been disposed of but before a formal order has been taken out, the exercise of such discretion is not governed by s. 5(4). Section 12 of the Act allows the Court to "make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination". While this provision is an express recognition of the broad flexibility conferred on certification judges, it cannot be construed, in my view, so as to override the long-standing and well-understood principles that apply once the Court has rendered its judgment and it is sought to reopen the proceedings and tender new evidence...For these reasons, in my view, the motions judge erred in the test that he applied for the reception of new evidence, namely, that there is an arguable case that the new evidence might justify certification. In my view, the test that he should have applied was the two-pronged test set out in Sa-gaz, namely, whether the new evidence would probably have changed the result, and whether it could not have been discovered by the exercise of due diligence"

ARBITRATION AND CRIMINAL INTEREST UPDATEMacKinnon v. National Money Mart Co, 2009 BCCA 103: The BCCA was asked to uphold the arbitration clause on reapplication by the Defendant following the SCC's decisions in Rogers and Dell. The court found that the law regarding commercial arbitration in British Columbia was not so different from Quebec law as to warrant a departure from the Supreme Court's findings with respect to the availability of arbitration to resolve class actions. However, the court found that issue estoppel applied to preclude Money Mart from applying to stay the proceedings in favour of arbitration. There were no special circumstances warranting the court's intervention to allow Money Mart to benefit from the changed law. The court also found that there was no error in failing to determine the constitutionality of s.347 of the Criminal Code at the certification hearing.In Seidel v. TELUS Communications Inc., 2009 BCCA 104, the court reaffirmed its position on arbitration clauses, but to greater effect as issue estoppel did not apply. On the issue estoppel point, the court stated:"Section 15(1) of the Commercial Arbitration Act specifically deals with the timing of stay applications. It provides that the application may be made by a party to legal proceedings "before or after entering an appearance and before delivery of any pleadings or taking any other step in the proceedings". TELUS has not delivered a statement of defence, and the provision of the list of defences did not constitute a step in the proceeding. TELUS did apply to strike out certain of Ms. Seidel’s claims but such an application is not a step in the proceedings...It must be remembered that when Ms. Seidel commenced her action, MacKinnon (2004) was binding authority in this province, and it held that an application for a stay under s. 15 prior to the certification application of an intended class proceeding was premature. TELUS delivered its stay application promptly after the issuance of Dell and Rogers cast doubt on the correctness of McKinnon (2004). TELUS cannot be faulted for its failure to make an earlier application when such an application was bound to fail pursuant to MacKinnon (2004)." Although there was a dispute about whether the 2003 arbitration clause applied to claims prior to that date, the court held that this should be determined by the arbitrator, not the court.Smith v. Moneymart, 2008 ONCA 746: Court refused to allow Moneymart to revisit the issue as to whether arbitration clauses trump the class action, based on issue estoppel. Leave to appeal was subsequently dismissed: [2008] S.C.C.A. No. 535.Smith Estate v. National Money Mart Co. [2008] O.J. No. 3497: Costs on application to dismiss. The Defendants moved for a stay of the action and the Plaintiffs moved for a partial summary judgment. See Smith Estate v. National Money Mart Co., [2008] O.J. No. 2248 (S.C.J.). The court dismissed both motions. On costs, the court concluded "...it is my view that costs in the cause is indeed the appropriate order for the summary judgment motion. I do not think, however, that a similar order should be made for the motion for a stay. For the motion for a stay, it is my opinion, that the Defendants should pay the Plaintiffs their costs forthwith.Smith v. Moneymart, [2008] O.J. No. 4474: The purpose of this hearing was to determine the quantum of those costs. The court assessed: (a) the Plaintiffs' costs of the stay motion at $289,059.23; (b) the Plaintiffs' costs of the summary judgment motion at $398,981.55; (c) the Defendants' costs of the summary judgment motion at $184,773.20; (d) the costs of fixing costs at $5,000.00 in the cause.Bodnar v. Cash Store, 2008 BCCA 432: The appeal of certification by lenders added to the class action was denied. The writer is counsel for the lead defendant, who took no position on the appeal.Casavant v. Cash Money Cheque Cashing Inc., 2008 BCSC 1556: Court refused to allow defendant to probe plaintiff's medical records to test adequacy. Court also declined to order that the records of transactions with other lenders be disclosed since the Plaintiff already admitted that she had engaged in transactions with other companies.DeWolf v. Bell ExpressVu Inc., [2008] O.J. No. 4769 (Div.Ct): The defendant Bell brought a motion for leave to appeal the Order of Perell J. dated September 15, 2008, in which he dismissed the defendants' motion for summary judgment. The issue was whether an administration fee charged by the defendants to its customers constituted "interest" as defined in s. 347 of the Criminal Code. Bell had already appealed the order granting the plaintiff summary judgment as of right. The Plaintiff did not oppose leave and it was granted.

TIMING OF DEFENCESAlberta Municipal Retired Police Officers' Mutual Benefit Society v. Alberta, 2009 ABQB 44: The court considered whether the defendants should be required to file a defence prior to certification. The court decided that this was unnecessary. The court distinguished the contrary finding Murray v. Alberta, 2007 ABQB 231 on the basis that (1) the court in Murray made a specific finding that there were reasons why the Statement of Defence would be helpful, and (2) defences would likely have to be altered following certification in the present case. The writer was counsel for Alberta.

EXTRAPROVINCIAL PLAINTIFF AND NOTICE ISSUES CONSIDEREDT.L. v. Alberta, 2009 ABQB 96: The court held that:1. The Plaintiffs had not done enough work to show that a resident plaintiff needed to be appointed as the non-resident class representative;2. The Notice should refer to the possibility that third party proceeding might be brought;3. The Notice should refer to the proposed contingency fee; and4. The Notice need not refer to the possibility for an adverse cost award at the individual hearing, as that could be addressed at a later stage after the common issues trial. The writer was counsel for the defendant.Bodnar v. The Cash Store, 2009 BCSC 74: As in T.L., the court found that the initial notice need not refer to the possibility of an adverse costs award at an individual hearing. The writer is counsel for the defendant, but I can blame this decision on Luciana, since I was out of town.

PROCEDURAL ISSUES IN SECONDARY MARKET LEAVE APPLICATIONS CONSIDEREDAinslie v. CV Technologies: The lower court ruled that the OSA does not require each defendant to file an affidavit in response to the plaintiff's motion for leave to bring an secondary market securities class action: [2008] O.J. No. 4891, correction [2008] O.J. No. 4927. At [2009] O.J. No. 730 (Ont.Div.Ct), the Divisional Court granted leave to appeal given that there was a difference of views between Justice Lax's decision and comments (albeit in obiter) by the court in Silver v. Imax Corp., [2008] O.J. No. 1844 (leave to appeal denied, [2008] O.J. No. 2751 (Sup.Ct.Jus.). In Silver, the court suggested that there was a duty to profer evidence in considering refusals on an examination.

COSTSRuffolo v. Sun Life Assurance Co. (April 3, 2009 Ont. C.A.): Lower court awarded Sun Life $215,000 in costs against the severely disabled plaintiffs on failed certification application. On appeal the plaintiffs characterized the award as "one of the highest costs awards in the history of the Act against an unsuccessful plaintiff" and "grossly excessive in the circumstances." On appeal, the court held the lower court properly exercised its discretion.Roman Catholic Bishop of the Diocese of Calgary v. Canada (Attorney General) 2009 ABQB 29: A diocese that did not participate in the national IRS settlement sought costs from Canada. While the court acknowledged the general costs principles, the court declined to exercise its discretion to award costs stating: "The principle stated that simplistically, however, does not address a matter as complex as this. A policy objective of costs is to discourage unnecessary litigation and to encourage settlement. On a policy level, there is merit to Canada's argument that this Applicant is a significant beneficiary of this global settlement:" Further, the court found that the Diocese was bound by the order in the class action settlement dismissing all related claims on a without costs basis.McGee v. London Life Insurance Co. [2008] O.J. No. 5312 (S.C.): Costs of a successful one day certification motion pegged at $50,000. The Plaintiffs had requested $130,000. The court noted: "I do not dispute that certification in any class action is a watershed moment and that significant resources are normally devoted to achieving and defeating this. For this reason, costs awards can be high relative to other motions." However, the court noted:1. the focus of the argument was quite narrow.2. some of the time incurred would have been in relation to research on the merits;3. there appeared to be substantial duplication of effort;4. the defendants claimed that their partial indemnity costs would only have been $68,713 (although the court noted that there were some questions about the accuracy of these dockets. The court did encourage defence counsel to continue to provide such information on these types of motions);5. the costs award in Markle v. Toronto was only $30,000, and in Pearson v. Inco the Court of Appeal awarded only $50,000 for leave and a 2 day appeal.Matoni v. C.B.S. Interactive Multimedia Inc. (c.o.b. Canadian Business College), [2008] O.J. No. 4910 (S.C.): Court set costs on motion for certification that was successful on a narrower basis than requested on a second attempt. The court found that as a portion of the claim had been certified, the plaintiffs were entitled to costs. The court also found that the defendants delayed and complicated matters, and inappropriately threatened to pursue costs against counsel personally. The court awarded $75,000 as opposed to the $230,000 requested.Hagos v. ING Insurance Co. of Canada, [2009] O.J. No. 931 (S.C.): The court considered costs in relation to two aborted motions relating to the appointment of two prior representative plaintiffs. It was now proposed that there be a third representative plaintiff. The court awarded $75,000 as interim costs, and stated it would consider what further costs should be awarded after consideration of the motion to add the third plaintiff.

SUBSTITUTION OF REPRESENTATIVE PLAINTIFFS AND ACCESS TO CLASS MEMBER LIST DISALLOWEDCHS v. Alberta, 2008 ABQB 620: The court refused substitution request on the basis that the proposed reps were either not proper class members or, in the case of a public interest advocate, that insufficient steps were taken to secure parental approval for the appointment as next friend. The court also found that proposed class counsel was not entitled to a list of class members in advance of certification stating "Although a solicitor-client relationship would arise upon certification, and the appointed representative plaintiff may request documents with proper notice and disclosure of the intent to seek such information after the opt-out period has expired, counsel for the Plaintiffs is nowhere near to achieving such status at this time." The writer is co-counsel for the defendant government.

CHICKENS AND EGGSIn Nette v. Stiles, 2009 ABQB 153, the court refused the Plaintiff's motion asking that the cause of action aspect of the certification test as against the Defendant Chiropractic College be heard prior to the balance of the certification elements. The Court noted that (1) the motion would not be dispositive as certain defendants were not contesting the existence of the cause of action, (2) bifurcation could result in multiple appeals, and (3) there was no indication that bifurcation would result in any material cost savings. The writer was counsel for the Defendant College.In Anderson v. Canada, 2008 NLTD 166, the court found that certification should proceed in advance of defence motions for particulars and to add additional parties. The court stated "It seems therefore that to engage in procedures that tend to defeat the efficiencies of class proceedings is to be discouraged unless the court is satisfied that such procedures will advance the fair and expeditious determination of the class action". The court noted that a number of class members were elderly, and that the request for particulars was extensive. The court found that the Statement of Claim was sufficiently stated to allow the Defendant to meet the case for certification. In relation to additional parties, the court found that this would inevitably delay the certification motion. The court did state in obiter that if the preliminary application has the potential to dispose of the litigation or more efficiently address the objectives of the Act, then it should be heard prior to the certification hearing. The court did award costs without comment, apparently adopting the view that even in a no costs jurisdiction, the protection was only engaged at and after the certification hearing.Merchant Law Group v. Canada (Revenue Agency), 2008 FC 1371: The court ordered that the jurisdiction motion to strike should proceed prior to the certification motion.Brooks v. Canada, [2009] S.J. No. 81 (S.C.):: The court set the scheduling of various motions. The application to examine on affidavits was scheduled prior to the certification application. A constitutional challenge was set down concurrent with the certification hearing.Mazzonna c. Daimlerchrysler Financial Services Canada Inc./Services financiers Daimlerchrysler inc. 2008 QCCS 5084: In proposed privacy class action arising from data loss, the defendants applied for right to examine representative plaintiff and adduce affidavit evidence. The court granted the motion on the basis that the allegations in the certification motion were rather sketchy, and hence the court could be enlightened by further information. The court did refuse to allow one proposed affidavit.Bouchard c. Ventes de véhicules Mitsubishi du Canada inc., 2008 QCCS 6033: Jurisdiction motion heard prior to motion for certification. Court granted the motion noting that there was no pleading of any acts having been committed in Quebec in furtherance of the alleged conspiracy. There was nothing more than economic damage suffered in Quebec, which is not sufficient to ground jurisdiction. The foreign defendants were not party to any contract.Piercey Estate v. Atlantic Lottery Corp., 2008 NLTD 202: The court allowed a summary judgment type motion to proceed in advance of certification as it had the potential to end the matter. The issue was whether the Atlantic Lottery Corporation was subject to the local Trade Practices Act. The case involved video lottery terminals. The court held that ALC was not bound to the legislation, as it was a Crown agent.

APPLICATION FOR EXAMINATION ALLOWEDPellemans v. Lacroix, 2009 QCCS 135: The court allow an examination of a trust company employee in this ongoing Norbourg saga. In an earlier decision, the court rejected a counsel disqualification request: 2008 QCCS 5857.

INTERVENTION REFUSEDFairview Donut Inc. and Brule Foods Ltd., Plaintiffs, v. The TDL Group Corp. and Tim Hortons Inc., [2008] O.J. No. 4720 (S.C.): This was a proposed class proceeding on behalf of franchisees The moving parties were twenty Tim Hortons' franchisees who have come together as the Executive Committee for the Concerned Franchisees Group (the "CFG") to oppose certification of the class action. The court held. "It seems plain to me that adding CFG as an intervener will only serve to delay the determination of the issues and may serve to take the proceeding off into a tangent...CFG claims to be able to offer the court the "unique perspective of franchisees", but has not shown how this will assist the court in determining whether the plaintiffs can satisfy the requirements for certification under section 5(1) of the CPA. It has not identified any evidence or argument that would differentiate its position from the position of the defendant. Finally, it seems clear that CFG shares at least some of the plaintiffs' concerns that are raised as issues in the litigation, but simply disagrees with the mechanism the plaintiffs have chosen for resolving these issues. CFG would prefer to negotiate rather than litigate. The opt out provision in the CPA is the proper mechanism to address these concerns."

MOTIONS TO STRIKEMirshahi v. Suleman, [2008] O.J. No. 4954 (S.C.): Parts of Statement of Claim struck in this failed investment action.Sorbara v. Canada (Attorney General), [2008] O.J. No. 4739: The court held that this tax class action could only be brought in Tax Court:"Having reviewed the Kingstreet Investments Ltd. judgment and the other cases referred to by both parties, and for the reasons that follow, it is my opinion that the Sorbaras' action should be dismissed. As I will explain in detail below, it is plain and obvious that the Sorbaras' action has a jurisdictional impediment because the Tax Court has the exclusive jurisdiction to determine whether the services provided by the portfolio managers are an exempt supply under s. 123 (1) of the Excise Tax Act. That element of their action is not a constitutional law matter but an administrative law matter of interpreting the Excise Tax Act. The Tax Court has exclusive original jurisdiction to decide that matter, and the Ontario Superior Court's undoubted jurisdiction in regards to unconstitutional legislation is not yet engaged.... In my opinion, the Sorbaras do not have an answer to the Federal Crown's jurisdictional argument and at the present juncture, the presence or absence of class action machinery in the Tax Court is not a basis for the Superior Court to take jurisdiction that has exclusively been conferred on the Tax Court."In a subsequent ruling at [2009] O.J. No. 657 (S.C.), the court issued an $11,000 costs order against the rep plaintiff. The court did agree that s.31 applies even prior to certification. The court held that: "the effect of s. 31(1) is to encourage the court to recognize that class actions tend toward being test cases, the determination of novel points of law, or the adjudication of matters of public interest and courts therefore should be alert to and respond to these tendencies. In other words, the court should be more willing to find that a proposed class action is a test case, the determination of a novel point of law, or the adjudication of matters of public interest."The court continued: "It can be said that virtually every class action has some aspects or attributes based upon which it becomes arguable that the proposed class proceeding is in the public interest. For example, by their very nature, in virtually every class action, the representative plaintiff will have little to gain as an individual and thus it becomes arguable that he or she is litigating altruistically and thus in the interest of others; namely a sector of the public. Similarly, virtually every class action will be important to developing the law or will affect the societal interests of some sector of the public and thus it becomes arguable that the action is in the public interest. The problem is that sometimes these arguments have gravitas and sometimes they do not.In the context of the case at bar, put simply, applying the s. 31 arguments to the circumstances of an action about the interpretation of an exemption to a taxing statute, I am not persuaded by the Sorbaras' argument that they should pay no costs for the dismissed action"Wareham v. Ontario (Minister of Community and Social Services), 2008 ONCA 771: The court held that the dismissal of this action should be upheld stating: "I am in substantial agreement with the analysis of the motion judge and his order striking the entire statement of claim. However, I would not restrict leave to amend the s. 7 claim to a breach based exclusively on the failure to give reasons for the denial of benefit claims. I would grant leave to amend permitting the appellants to advance a claim for a declaration of a s. 7 Charter breach based on the Province's failure to provide a process for the determination of benefit entitlement that complies with the Charter requirements of procedural fairness."Pearson v. Canada (Minister of Justice), 2008 FC 1161, appeal dismissed 2008 FC 1367: Motion to strike claim for discrimination against practitioners of the Assembly of the Church of the Universe of Canada granted and upheld.Cavanaugh v. Grenville Christian College, [2009] O.J. No. 875 (S.C.): Application to strike abuse class action dismissed. Problematic aspects of the claim were dismissed.Blackman v. Fedex Trade Networks Transport & Brokerage (Canada), Inc., 2009 BCSC 201: Court heard a summary trial under Rule 18A on consent prior to certification. The court held that the custom brokerage fees were properly charged. Notably, the court found that: " I agree with the defendants' contention that the removal of the "failure to disclose" portion of the definition of deceptive practice [in the new BPCPA replacing the prior Trade Practice Act] does foreclose the plaintiff from seeking redress under the BPCPA for a complaint that he was deceived by a failure to disclose..."

STAY GRANTEDFedex Ground Package System v. Au, 2008 BCSC 1800: The Plaintiff sought to avoid the application of the Commercial Arbitration Act by stating he intended to apply to make his action a class proceeding. However, he had not noted that intention on his claim, and there was no direct evidence of the intention. The court granted the stay application.

ACCESS TO WITNESSESGrant v. Canada (Attorney General), [2008] O.J. No. 4470: For the purpose of a pending motion to certify this proceeding, plaintiff's counsel requested permission to speak to an employee of Health Canada, Dr. Hari M. Vijay. When permission was refused by the defendant, a summons to witness was served on Dr. Vijay. The Attorney General moved to strike the summons. The court allowed the application stating: "Having delivered the affidavit of Dr. Gots, I do not believe the Attorney-General can now properly object to the plaintiff's desire to examine Dr. Vijay in order to test, or rebut, the opinions he has expressed and, generally, to obtain her evidence on the requirements for certification. In my opinion a sufficient evidentiary basis has been provided for a conclusion that she will be in a position to provide some such relevant evidence."

ENVIRONMENTAL CLASS ACTION JUDGMENT AT SCCBarrette v. St. Lawrence Cement Inc. v, 2008 SCC 64: The court rejected the defendant's appeal on liability, and granted the plaintiff's appeal seeking nuisance type strict liability.On the limitation period for damages, the court held that damage relating to events subsequent to the judgment authorizing the class action were not subject to prescription. The application for authorization to institute a class action suspended prescription until the judgment granting the motion was no longer susceptible of appeal (art. 2908 C.C.Q.), and the filing of the action then interrupted prescription (art. 2892 C.C.Q.). According to art. 2896 C.C.Q., such an interruption continues until judgment and has effect in respect of any right arising from the "same source". These words must be interpreted liberally. Here, the source of the continuing damage suffered remained the same: activities of the defendant that caused excessive neighbourhood annoyances. Since those activities continued until 1997, it would make no sense, in addition to being impractical, to ask the representative plaintiffs to repeat their motion every three years for each annoyance suffered.In terms of damages, given the trial judge's discretion and the difficulty of assessing environmental problems and annoyances, the trial judge's use of average amounts in different zones as a method in determining the quantum of damages was reasonable and appropriate in the circumstances. The Defendant had not shown that its liability increased as a result, and there is no indication that the amount awarded was based on a wholly erroneous estimate of the injury. The trial court's conclusions on the assessment of damages were restored. The court stated:"The provisions of the Code of Civil Procedure on individual claims do not suggest that the trial judge may not decide the amount to be awarded in respect of an individual injury (see arts. 1037 to 1040 C.C.P.). Moreover, a judge who opts for collective recovery does so "if the evidence produced enables the establishment with sufficient accuracy of the total amount of the claims of the members; [the judge] then determines the amount owed by the debtor even if the identity of each of the members or the exact amount of their claims is not established" (art. 1031 C.C.P.). This suggests that the total amount is based on an assessment of the sum of the members' individual injuries. Finally, the trial judge has considerable discretion in making this assessment in the context of a class action...Thus, a trial judge who, as in the case at bar, decides to proceed by way of individual claims is not precluded from determining the amount to be awarded in respect of an individual injury. This approach also simplifies the individual claims procedure, since it will then be possible to limit what must be proved at that stage. The question that remains is whether it was appropriate for Dutil J. to use average amounts to determine the compensation in this case. It must be recognized that the annoyances suffered by victims of environmental injury are difficult to assess... Given the trial judge's discretion and the difficulty of assessing environmental problems and annoyances, we consider Dutil J.'s use of average amounts to have been reasonable and appropriate in the circumstances. Moreover, SLC has not shown that its liability increased as a result. There is no indication that the amount awarded by Dutil J. was based on a wholly erroneous estimate of the injury."Notably, the court distinguished Hollick and arguably provided a road map for future common law environmental class actions stating:"It is true that in Hollick v. Toronto (City), [2001] 3 S.C.R. 158, 2001 SCC 68, this Court expressed the opinion that the class action was not the preferable means of resolving the claims of the class members. However, in that case, the Divisional Court had noted that "[e]ven if one considers only the 150 persons who made complaints - those complaints relate to different dates and different locations spread out over seven years and 16 square miles" (para. 32). In the instant case, the representatives provided detailed evidence of the injury they had suffered. Dutil J. considered all that evidence and was able to infer from it that the members in each zone had suffered similar injuries. Her analysis contains no error warranting this Court's intervention."

YES VIRGINIA, CLASS ACTIONS DO GO TO TRIALSaraïlis c. Voyage Héritage J. & A. inc., 2008 QCCA 2439: Dismissal of travel class action upheld.Barbour v. The University of British Columbia, 2009 BCSC 425: Parking class action successful on common issues.Association pour la protection des automobilistes inc. c. Toyota Canada inc., 2009 QCCS 1009: Trial court asked to consider certain quantification issues arising from successful judgment on the merits. This included the interest calculation and special costs.Kotai v. Queen of the North, 2008 BCSC 1398: Court refused order that liability in a series of individual actions be heard together with upcoming trial in certified class action. The court found that there were no common issues remaining across the individual actions and the class action. The court also held that the individual quantum trials should not be bogged down with the CPA quantum considerations.

DISCONTINUANCE REQUEST ALLOWEDZushman v. United Parcel Services Canada Ltd., [2009] O.J. No. 1252 (S.C.): The Merchant Law Group sought to discontinue an Ontario proceeding. There was a competing Ontario action on the same issues that the court was advised would be proceeding instead. The court allowed the motion stating: "I see no reasons why the decision of experienced counsel to proceed only with the Wright proceeding should be questioned in the interest of the class"The court did hit the plaintiff with costs however stating: "Given the practice of starting multiple class actions in which counsel compete for carriage, I believe it is important to emphasize that orders for costs can be made to compensate defendant's counsel for their work and time expended in cases that have subsequently been discontinued or stayed." Costs of $12,500 were awarded.

PRE-TRIAL PROCEDURES CONSIDEREDJeffery v. London Life Insurance Co. [2008] O.J. No. 5395 (S.C.): Plaintiff had set matter down for trial, but then sought early exchange of expert reports. Defendant said that leave was required. The court found that:"I am of the view that pursuant to s. 12 of the Class Proceedings Act, parties may bring motions before the court at any stage of the proceeding respecting the conduct of the proceeding to ensure its fair and expeditious determination. As a result the party who set the common issue trial down for trial ought to be able to bring a motion such as this one. To decide otherwise could deny parties access to the court to fulfill the functions contemplated by s. 12 of the Class Proceedings Act. Further, in my view, an order granting the type of relief sought by the plaintiffs on these motions would be an appropriate order pursuant to s. 12 of the Class Proceedings Act. A conclusion to the contrary would thwart the purpose for which s. 12 was enacted, that is to ensure a fair and expeditions determination of a class proceeding."However, the court found that it would not be just to impose early disclosure, as the defendants could not meet the deadline. The trial was adjourned and a later date set for delivery of reports.

SECURITY FOR COSTSPeter v. Medtronic Inc. [2008] O.J. No. 4378: The defendant sought an order that the Plaintiff post $257,000.00 in security for costs. The court confirmed that it has the discretion under s.12 to order security for costs even where Rule 56's requirements are not met."As I discussed in Fantl v. Transamerica Life Canada,...the Legislature intended that class proceedings have a genuine plaintiff. This is important, amongst other reasons, because it allows the purposes of a two-way costs regime to be achievable, in whole or in part, in a class proceeding. Colloquially, a two-way costs regime means that the Legislature intended that both parties have some "skin in the game" and an incentive to make responsible decisions about how the class action is litigated. "On the need for costs:"In their view of the role of costs and or an order for security for costs, the Defendants focus their attention on the alleged circumvention of their reasonable expectation of recovering costs if they are successful in defending the action. The regimentation of costs in litigation, however, has more purposes than partially (or in a few cases, substantially) indemnifying the successful party for the expense of successfully prosecuting or successfully defending a proceeding. Costs awards are multifunctional. Modern costs rules are designed to further five purposes in the administration of justice: (1) to discourage frivolous claims and defences; (2) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; (3) to facilitate access to justice, including access for impecunious litigants; (4) to indemnify successful litigants for the costs of litigation, although not necessarily completely; and (5) to encourage settlements....The Defendants' argument that security for costs is needed in the immediate case to protect the Defendants' reasonable expectation of being indemnified would have more heft to it if the indemnification principle were the main purpose of the costs regime, but, as I have just noted, costs serve purposes beyond indemnifying successful parties....Apart from the alleged misrepresentation to the court, another matter I will discuss further below is that there is no reason to impose costs as a sanction for inappropriate behaviour. I again foreshadow to say that in this case this factor is insufficient to ground an order for security for costs. ...And there is little reason to order costs or security for costs to encourage a settlement. Further, I am not prepared to find that the Representative Plaintiffs were selected in order to thwart the Defendants' reasonable expectation of recovering costs, and it appears to me that they rather have exposed themselves and made a serious commitment to the class action...Moreover, what should not be lost sight of is that while the Representative Plaintiffs may not have enough to satisfy the Defendants, they have risked everything they do have. This is significant because it means that while the indemnification purpose of a costs award may not be fully achievable, the other purposes for costs are achievable. In other words, the Representative Plaintiffs do have "skin in the game" and are exposed to the regimentation of costs. If they lose, they risk everything they have, which is at least as great, if not greater a risk, than confronted by the Defendants....In any event, it is my opinion that it is not appropriate in the circumstances of the immediate case to order security for costs mainly to protect the Defendants' reasonable expectation of recovering its costs. The general principle remains that both plaintiffs and defendants are not required to secure their potential liability for costs, and the risk of a judgment proof litigant is a fact of life in litigation.... In so far as the request for security for costs is made because the Representative Plaintiffs have not applied to the Class Proceedings Fund, this is a matter in which the Defendants would normally have no say or direct entitlement...[A] a defendant's reasonable expectation of being indemnified for costs does not extend to an entitlement or expectation that the plaintiff will apply for funding from the Class Proceedings Fund and the expectation cannot be the basis for ordering security for costs, although the presence of funding would be relevant to resisting the motion.In a subsequent decision the court awarded the Plaintiff $21,000 for costs of this motion: [2008] O.J. No. 5055 (S.C.)

FIDUCIARY CLAIM SURVIVES IN NURSING HOME CASEMorrison Estate v. Nova Scotia, 2008 NSSC 281: The Provinces effort to strike the fiduciary duty claim in this action challenging a change in regime for private payment of nursing home fees was dismissed. The court stated that the following regulation was sufficient to at least raise an arguable case that a specific fiduciary duty was owed to class members rather than just a general duty to the public: " [R]egulation 28B.. reads: The per diem rate for a nursing home and a home for the aged shall be determined by the Minister of Health having regard to the best interests of the resident."

APPLICATION TO SUBMIT EVIDENCE GRANTEDMères avec pouvoir (MAP) Montréal c. Bell Canada, 2008 QCCS 5447: The court granted the defendant's application to call oral evidence at the certification hearing of this internet bundling class action. The court found that the proposed testimony would assist in evaluating the certification criteria.

APPEALSRichard v. B.C. 2008 BCSC 1275: The trial court required production of all class member files held by the defendant in this abuse class action. The trial court held that the files were potentially relevant to the systemic abuse common issue, and that class counsel had implied authority to review class member files. Leave to appeal was granted, 2008 BCCA 549, but the appeal itself was dismissed: 2009 BCCA 77. The writer is co-counsel for the defendant.Manuge v. Canada, 2009 FCA 29: The Court of Appeal held that this Charter action should have been commenced by way of application for judicial review rather than by action. Leave was granted to reconstitute the proceeding as an application. The writer is co-counsel for the class.Withler v. Canada, 2008 BCCA 539: Court upheld dismissal of age discrimination class action, with one dissent. Leave to appeal to SCC is being sought. The writer is co-counsel for the class.Fantl v. Transamerica [2008] O.J. No. 4928 (Div.Ct): Appeal denied of decision allowing class representative to choose new counsel on break up of prior firm.Popovic v. Montreal, 2008 QCCA 2371: Court affirmed lower court decision dismissing a certified case on cause of action grounds prior to certification. The judgment is of interest to class action practitioners in Québec in that the Court of Appeal confirms for the first time that a certified class action can be struck before trial on the grounds that the proceedings fail to disclose a cause of action. Ever since a judgment of the Superior Court in the Dikranian case in 2000, conventional wisdom had held that, once certified, a class action could not be struck for failure to disclose a cause of action. As the argument went, the cause of action is already analyzed at certification under Art. 1003 (b) of the Code of Civil Procedure, which requires the judge to decide whether "the facts alleged seem to justify the conclusions sought" (the "appearance of right" criterion). Bringing a pre-trial motion for failure to disclose a cause of action after certification was thus seen as a "disguised appeal" from the certification judgment and, as such, an indirect violation of the prohibition against appeals from judgments certifying class actions. The Court of Appeal explicitly rejects this argument and notes that the analysis performed under Art. 1003 (b) CCP is different and more superficial than the analysis required under Art. 165 (4) CCP governing pre-trial motions, which provides that the action should be dismissed if "the suit is unfounded in law, even if the facts alleged are true." Thanks to Marie Auden of BLG for her assistance in interpreting the fine points of the decision.Poulin v. Ford Motor Co. of Canada, [2008] O.J. No. 4153 (Div.Ct): Refusal to certify upheld. There was an interesting point on the suggestion that the trial judge should have ordered subclasses: "The Appellant did not raise the issue of subclasses with the motion judge. The Appellant had maintained the position up to and including the hearing of the motion for certification that a single class was sufficient and presented no evidence in support of the creation or identification of sub-classes. As a result, the Respondents' witnesses were never given the opportunity to give evidence on the suitability or identity of such subclasses. Also, the Appellant has not proposed or identified the persons who could act as representative plaintiffs in respect of such subclasses and has put for-ward no evidence as to the suitability of such persons as representative plaintiffs. There is no merit in the Appellant's submission that the motion judge erred in law because he failed to take the initiative, in the absence of any appropriate evidentiary base, to create multiple subclasses" (at paras.37-38)The court did find an error in the refusal to recognize a damages common issue in relation to the satisfaction of the Winnipeg Condo standard, but this was not sufficient to support certification.The court found that the Transport Canada alternative proposed by the trial judge was proper given that (1) class member just had a pure economic loss claim at this point, and (2) Transport Canada could order a recall.In terms of the probing of the counsel relationship, the Divisional Court stated: "The fact that Will Barristers was required to obtain approval from Motley Rice (who was funding the disbursements for the action) for any disbursements over $2,500 was quite properly, as the motion judge found, a significant concern in the context of the Mr. Poulin's capacity to be a rep-resentative for a class proceeding."Davis v. Canada, 2008 NLCA 49: Court dismissed refusal to certify class action by aboriginal group. The court emphasized the required deference (para.23). In terms of the preferred test case alternative, the court stated: " I do not accept the Claimants’ suggestion that a test case would not result in the application of relevant determinations of law to other individuals. As noted by the applications judge, I would expect that the governments would consider that they are bound by any judicial determinations applicable to similar claimants." (at para.45). The court also confirmed that the court's reliance on the availability of unconditional funding was proper (para.47). The court declined to place much weight on the protection against limitations provided by the CAA stating: "The purpose of the Class Actions Act is not to shield claimants from the operation of the law where the circumstances do not otherwise establish a class action as the preferable procedure." (at para.49).Dubuc c. Bell Mobitlité inc. 2008 QCCA 1962: Court upheld this refusal to certify a cell phone charge class action based on the failure on the part of the rep plaintiff to present the contractual terms on which the alleged cause of action was based. A similar result was achieved in Option Consommateurs c. Bell Mobilité, 2008 QCCA 2201. In the latter decision the court held that it was inappropriate to consider a proposed amendment to the class definition at the appellate stage (Kirk Baert has cancelled his plans to move to Montreal).Nadon c. Montréal (Ville de), 2008 QCCA 2221: Dismissal of this pollen/allergy class action was upheld. The court emphasized that the legal tests on the merits are not modified in a class action. The court agreed with the trial judge's conclusion that causation had not been established. In earlier proceedings the court rejected an application to file a new report: 2008 QCCA 2214.Diffusion Métromédia CMR inc. c. Bou Malhab, 2008 QCCA 1938: "Are you talkin' about me? Are you talkin' about me?" Appeal of partial certification of taxi cab driver libel case. The court held that the case was not properly certified as there was no basis to conclude that the individual reputation and personal dignity of each of the drivers belonging the to the targeted groups had been sullied.Halvorson v. British Columbia (Medical Services Commission), 2008 BCCA 501: Application by Plaintiff for leave to appeal from an interlocutory order requiring him to provide particulars of his class action claim. Leave was granted. There were issues as to whether or not particulars should be provided prior to the determination of the common issues. The procedural issues were significant to the claim, which had been stalled for five years, and were significant to the practice of class actions in order to avoid similar quagmires in the future.McMillan v. Canada Mortgage and Housing Corp., 2008 BCCA 543: Court dismissed appeal of the pleadings dismissal of this leaky condo class action.Soldier v. Canada (Attorney General), 2009 MBCA 12: Appeal by proposed plaintiffs from dismissal of applications for certification of two actions as class proceedings. The plaintiffs sought damages from the Crown for past annuities allegedly due to them under two treaties. The court found that the standard of review of the cause of action issue was correctness, whereas the balance of the test was discretionary and therefore entitled to significantly more deference (para.24). The Court of Appeal found that the certification judge did not err in principle or commit palpable and overriding error when she considered standing as part of the question as to whether the plaintiffs had a cause of action. On the cause of action point, the court held that: "the judge erred when she held that the plaintiffs had no standing because entitlement to the annuity under Treaties No. 1 and 2 is a collective right for which an individual may not sue. Quite simply, the law in this area is not sufficiently clear to conclude that it is beyond doubt that the action could not succeed at trial." This error also caused the judge to err in relation to the common issues requirement as well. However, the court found that certification was not the preferable procedure, as the matter should have proceeded by way of representative action. The court found that the representative plaintiffs were inappropriate because they were advancing the case on too narrow a basis, relying solely on the wording of the treaty: "In the court's view, given the complexity of treaty interpretation and the need for evidence related to the intention and understanding of the treaty signatories as well as the circumstances surrounding the signing of the treaties, such evidence was required." (at para.94). "While strategy and tactics may change as litigation progresses, representative plaintiffs purporting to advance litigation on behalf of approximately 40,000 individuals entitled to treaty annuity payments must, at a minimum, demonstrate an understanding of the jurisprudence on treaty interpretation." (at para.98).MacQueen v. Canada (Attorney General), 2008 NSCA 117: Court upheld orders requiring plaintiffs and two representative plaintiffs to attend for cross-examination on their affidavits.Attis v. Canada (Minister of Health), 2008 ONCA 660, Drady v. Canada (Minister of Health), 2008 ONCA 659: In both breast implant cases the court found that there was no duty of care on the part of the government in relation to the approval of the relevant products.

LEAFS TO APPEALLefrancois v. Guidant Corp. [2009] O.J. No. 36, Tiboni) v. Merck Frosst Canada Ltd. (November 24, 2008), Toronto 503-08 (Ont. S.C.J.): Leaves denied from decisions certifying products liability actions. In Guidant, the court specifically denied to give leave on the issue as to whether the cause of action test should conform with the refinements made by the Sask. C.A. in Hoffman v. Monsanto Canada Inc.. The court in Guidant also found that there was nothing improper about the trial judge's conclusion that references could be ordered to resolve issues of causation, given that the Ontario Rules in relation to references were stated to be controlled by the operation of any statute (including s.25 of the Ontario CPA). The court noted that references were part of the case management plans in Mignacca v. Merck Frost Canada Ltd. [2008] O.J. No. 2996, leave to appeal denied November 24, 2008 and Peter v. Medtronic [2007] O.J. No. 4828, leave to appeal denied [2008] O.J. No. 1916.Tiboni v. Merck Frosst Canada Ltd., [2009] O.J. No. 80 (S.C.): Leave granted of decision disqualifying Alan Rock from acting in product liability action given his prior role as Minister of Health.Sun-Rype Products Ltd v. Archer Daniels Midland Co., [2008] S.C.C.A. No. 416: Leave denied from decision of BCCA that 10 year limitation period applied to constructive trust claim.Casavant v. Cash Money Cheque Cashing Inc., 2009 BCCA 58: Leave to appeal denied from a decision (2008 BCSC 1556) refusing disclosure of representative plaintiffs' health records in a pay day loan class action. The court stated that there was no merit in the position that the defendants were entitled to conduct an in-depth medical inquiry in order to test the suitability of a representative plaintiff. The court noted "The only Canadian case to which I was referred, is Phaneuf v. Ontario (2007), 285 D.L.R. (4th) 727 (Ont. S.C.J.). In that case, it was held that Ms. Phaneuf was not disentitled to act as a representative plaintiff by reason of her mental illness: paras. 78 - 81. Leave to appeal that judgment has been granted, but on other issues: (2008), 291 D.L.R. (4th) 515 (Ont. Div. Ct.)."Nguyen v. CP Ships, [2008] S.C.C.A. No. 473: Leave denied of decision to certify national opt out securities case in Quebec.Berneche v. Canada, 2008 SCCA 443: Leave dismissed from order granting particulars and striking part of the claim in the Quebec branch of the "mad cow" case.Harmengies v. Toyota: [2008] S.C.C.A. No. 173: Leave dismissed from decision refusing to certify action.Option Consommateurs c. Novopharm Ltd.[2008] S.C.C.A. No. 346: Leave dismissedSagharian (Litigation Guardian) v. Canada (Minister of Education), [2008] S.C.C.A. No. 350: Leave dismissed from decision striking claim.

DECERTIFICATION MOTION REJECTEDPearson v. Inco [2009] O.J. No. 780 (S.C.): Court rejected application to decertify this long-running environmental contamination case. The court clarified the test for decertification stating "The moving party has, in my opinion, the burden of showing that the earlier decision would not have been made in the light of new evidence - including evidence of facts that have subsequently occurred. Subsequent facts - consisting, for example, of development that occur as the proceeding moves towards trial - may demonstrate that, contrary to the original finding, it is not manageable as a class action."The application was based on a letter from Plaintiff's counsel indicating that he intended to rely on disclosures regarding contamination made prior to the September 2000 date that served as the trigger for the class approved by the court.The court found that this did not undermine certification as the court was not "prepared to infer that it was necessarily assumed that there were no disclosures prior to September 20, 2000, or that such disclosures would not have had any negative impact on property values."Further, the court relied on commitment made by Plaintiff's counsel that "it was not part of the plaintiff's case to assert that the earlier disclosures had a negative impact on property values".

SCOPE OF CERTIFICATION EVIDENCE CONSIDEREDPro-Sys Consultants Ltd. v. Microsoft Corp., [2008] B.C.J. No. 1778: This was a motion brought by Microsoft seeking to prevent the plaintiffs from relying on a number of affidavits - primarily those of experts - in an upcoming certification hearing. The principal arguments made by Microsoft were:(a) the affidavits are not proper reply evidence. Therefore the plaintiffs have split their case;(b) the affidavits exhibit and refer to opinions of experts given in similar litigation in the U.S. That evidence is inadmissible because the authors of the opinions have not filed affidavits in this action; and(c) portions of the affidavits are in the nature of either argument or judicial pronouncements.The court held: "It is true that a certification is motion is to be heard as soon as possible and as efficiently and fairly as possible. Sometimes balancing those ends will entail the Court entertaining and deciding pre-certification motions and sometimes not. I do not think that it can be said that a motion dealing with the admissibility of a substantial body of evidence to which a party would want to respond is necessarily premature. The ruling on such a motion may in fact assist in the efficiency and fairness of the certification process by reducing the volume of inadmissible material at the certification hearing" The court went on to review the particular evidence, allowing some and rejecting others. On the application to cross examine the Plaintiff's experts "Suffice it to say that the courts have permitted cross-examination where there is a conflict in evidence on a point which is germane to certification. Whether to allow the cross-examination in those circumstances is discretionary and depends on the factors of each case. Such factors include the importance of the issue, whether the cross-examination will unduly delay the certification application and whether the cross-examination is likely to elucidate the relevant issue(s)."

CONFLICT OF INTEREST ALLEGATION DISMISSEDMcKenna v. Gammon Gold Inc., [2009] O.J. No. 39: This decision addressed whether a law firm should be disqualified when it prosecutes an action against a subsidiary of its client for whom it has acted in unrelated matters. The defendants included the underwriting syndicate for the public share offering of the defendant Gammon Gold Inc. Two of the underwriter defendants complained that at the time the action was commenced, Siskinds was concurrently retained by the Bank of Montreal and Toronto Dominion Bank to act for them in consumer debt enforcement proceedings and some personal bankruptcy matters. The court held that there was no conflict of interest stating; "The underwriters and the banks are separate and sophisticated business and legal entities that are individually governed and autonomous. The banks had no reasonable expectation that their subsidiaries would be treated as clients."

DISCOVERY ISSUESPearson v. Inco Ltd., [2008] O.J. No. 3589 (S.C.): Court considered privilege issues on XFD.Durling v. Sunrise Propane Energy Group Inc., [2008] O.J. No. 5031 (S.C.): This proposed class action arose out of an explosion and fire at defendant's facility in Toronto, which resulted in an evacuation order. There was an application for documents in the hands of the police and other agencies was made prior to certification. The court granted the order. The court did not rely on the fact that the case was a class action stating: "Although there is a broad discretion to make any order it deems appropriate, "the discretion conferred by s. 12 of the CPA is intended to supplement the Rules by accommodating the special nature of class proceedings. However, s. 12 is not designed to circumvent the normative Rules." "It would take extraordinary circumstances to allow pre-discovery discovery because of the nature of class proceedings". The court found that the plaintiffs did not require the information in order to plead. Nor was the information required for certification.However, invoking the usual rules in relation to discovery, the court was satisfied that "...the delay in getting to the discovery stage of this class proceeding and in obtaining documents which depict the condition of the site following the explosion and fire constitutes extraordinary circumstances. In my view this is an appropriate case for early non-party production, but such productions should be as narrow as possible..."Ring v. Canada (Attorney General), 2009 NLTD 39: Court confirmed that implied undertaking rule existed in Newfoundland. Plaintiff's counsel sought to use material obtained in this certified action in Newfoundland in a parallel Saskatchewan litigation. The court stated: "A bald statement that it is appropriate to allow the use of such material in allegedly parallel actions across the country is not convincing, particularly where the Saskatchewan Class Actions Act, ...provides that discovery in that jurisdiction is to occur after certification and the action has not yet been certified and the Saskatchewan court has ruled that the two actions are in fact dissimilar in many important respects."Conseil québécois sur le tabac et la santé c. JTI-Macdonald Corp. 2009 QCCS 830: Court declined to order examinations of class members that did not go to the common issues.Berry v. Pulley, [2009] O.J. No. 463 (S.C.): The court gave direction on certain refusals in this long running dispute about the rights of pilots on the merger of Air Canada and Canadian Airlines. There was also an earlier production motion at [2008] O.J. No. 4109 (S.C.-Master).

APPLICATION TO DISQUALIFY JUDGE REFUSEDJohnson v. British Columbia (Workers' Compensation Board), 2008 BCSC 1386: This certified judicial review procedure was sent back to the trial judge to consider the remaining issues. The defendant applied to disqualify the court. The cout refused stating: "WCB argued that, because I came to the conclusions I did in the Certification Decision and the Judicial Review Decision, there is a reasonable apprehension that I will be biased in considering the Procedural Issues, which involve consideration of the court's discretion. The flaw in this argument arises from the fact that my conclusions in the Certification Decision and the Judicial Review Decision are binding on every judge of this court unless overruled by the Court of Appeal. In considering whether a judge could come to a decision without the benefit of analysis by WCAT, every judge of this court must consider that in fact I did so in the Judicial Re-view Decision."

ABILITY TO EXTEND CLAIM PERIOD IN CLASS ACTION SETTLEMENTS RECOGNIZEDCanadian Red Cross Society (Re) [2008] O.J. No. 4114 (S.C.): In this CCAA proceeding there was an application to consider the jurisdiction to allow late claims. The court made reference to the existence of such a power in class proceedings stating: "In considering whether the court has jurisdiction to legitimise late and irregular applications, there are number of special features of the HIV Trust that distinguish it from trusts of a more traditional kind, and even the more closely analogous provisions of settlements of class proceedings un-der which - because of the inevitable imperfection of notice-dissemination programs - late-filed claims have been allowed from time to time."

FOSS V. HARBOTTLE AND CLASS ACTIONSEverest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 276: Appeal by Everest from a summary judgment dismissing its action against CIBC, a Canadian bank that provided advice to the trustees of the Del Cano real estate investment trust. Everest was a group of investors in the trust. Everest made an unsuccessful takeover bid which was thwarted by the trustees, who later sold the trust in a transaction which provided shareholders with a better return than they would have received had Everest's bid been successful. Everest's allegations against the trustees and CIBC involved a claim they breached their duty of care to the shareholders of the trust by failing to disclose other letters of intent and expressions of interest when the trustees recommended the shareholders approve the offer to purchase the trust that ultimately succeeded. The judge applied the rule in Foss v. Harbottle, striking the claim against CIBC as derivative and capable of being asserted by the trust itself. The appeal was dismissed. The losses and damages Everest complained of arose only as a consequence of Everest being a shareholder of the trust. The true substance of the claim was damage to the trust only. Everest failed to show it had a cause of action against CIBC that the other shareholders of the trust did not. Everest had no independent relationship with CIBC and did not suffer an independent loss in respect of wrongs allegedly done to the trust. Everest could not engineer around the rule in Foss v. Harbottle by framing its action as a class proceeding.

APPLICATIONS TO AMENDFortin c. Playtex ltée, 2008 QCCS 5580: Application to add new representative was not opposed and was allowed.Holmes v. Jastek Master Builder 2004 Inc., 2008 SKQB 367, leave to appeal denied 2008 SKCA 159: Plaintiffs applied to amend to plead breach of fiduciary duty and breach of trust. The Plaintiff was allowed to plead the former, but not the latter.Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FC 1343: Long-running immigration fee case. This was application to expand the class to include those under further regulations. The application was granted.